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EEOC: Incentives for Health Assessments of Spouses Permitted

The Equal Employment Opportunity Commission (EEOC) has proposed a rule that would allow employers to provide incentives to workers when their covered spouses complete a health risk assessment (HRA) about their current or past health, as part of a wellness program.

The Oct. 30, 2015, proposal is a reversal from some EEOC offices’ positions that such incentives would violate the Genetic Information Nondiscrimination Act (GINA), said Steve Wojcik, vice president of public policy at the National Business Group on Health. Headquartered in Washington, D.C., the organization aims to provide creative solutions to the nation’s most pressing health benefits challenges.

The proposed rule is a “positive step” and “a big change,” said Russell Chapman, an attorney with Littler in Dallas.

However, the proposed rule does stipulate that an incentive could not be given to employees to encourage spouses to provide genetic information, as this would run afoul of GINA. Genetic information includes the results of an individual’s genetic tests, the results of genetic tests of family members of the individual, and information regarding the manifestation of a disease or disorder in family members of the individual.

Incentives might include discounts on an employee’s contributions to health care coverage, greater employer contributions to health savings accounts, or cash or prize awards, Wojcik added. The incentive would be limited to 30 percent of the total cost of the plan in which the employee and any dependents are enrolled, Wojcik noted. The total cost takes into account both employer and employee contributions toward the cost of coverage.

“Employers should note that the employer must obtain authorization from the spouse when collecting information about the spouse’s past or current health status,” noted Jill Vorobiev, an attorney with Dykema in Chicago.

The proposed rule also clarifies that no incentives would be allowed for information about the current or past health status or genetic information of an employee’s children. This ban on incentives regarding children didn’t make sense to some.

“Given that employees may be able to maintain children on benefits plans until the age of 26, there are significant potential benefits to including at least some children in an employer-sponsored wellness program,” said Peter Gillespie, an attorney with Fisher & Phillips in Chicago. “Employers should not need to fear an EEOC lawsuit because they tried to provide tools that may help dependents of their employees to understand the benefits of a healthy diet, getting exercise, wearing a seat belt, or avoiding tobacco and alcohol as part of a comprehensive health risk assessment that might also take family medical history into account.”

And Vorobiev observed, “While the proposed rule notes that GINA’s legislative history recognized that a family’s medical history could be used as a surrogate for an employee’s genetic traits, an employee’s adopted children, for example, would not seem to create this risk.”

Medical Questionnaire or Exam

Assessments of the current or past health of spouses may take the form of a medical questionnaire, a medical examination such as one to detect high blood pressure or high cholesterol, or both, the EEOC noted in its overview of the proposed rule.

“There is minimal, if any, chance of eliciting information about an employee’s own genetic make-up or predisposition for disease from the information about current or past health status of the employee’s spouse,” the EEOC observed.

“By contrast, there is a significantly higher likelihood of eliciting information about an employee’s own genetic make-up or predisposition for disease from information about the current or past health status of the employee’s children, which is why the proposed revision does not permit inducements for such information,” it added.

Medical exams conducted as part of wellness programs save lives, Chapman said. The screenings typically test for hypertension, diabetes and heart conditions, and sometimes people go directly from the health screening to the hospital, he remarked.

Wellness Requirements

Wellness programs must promote health or prevent disease, a definition that “may not be as clear as employers would like,” observed Joseph Lazzarotti, an attorney in Jackson Lewis’ Morristown, N.J., office. A wellness program must:

Have a reasonable chance of improving the health of, or preventing disease in, participating individuals.

Not be overly burdensome.

Not be considered a subterfuge for violating GINA or other laws prohibiting employment discrimination.

Not be “highly suspect” in the method chosen to promote health or prevent disease.

“That is a mouthful,” Lazzarotti noted. The standards for whether a program “promotes health or prevents disease” seem “to be open to interpretation and may give employers pause as to whether their programs meet those standards.

In its proposed rule, the commission invited questions from the public on several issues, including:

Whether the rule should include more specific guidance to employers regarding electronic records in light of electronic storage of employee information and the frequent breaches to electronically stored employee records.

Whether an employer must offer inducements to a spouse who does not disclose current or past health information, but who instead provides certification from a medical professional stating that the spouse is under the care of a physician and that any medical risks are under active treatment.

Which best practices ensure that employer-sponsored wellness programs are designed to prevent disease and do not act to shift costs to employees with spouses who have health impairments or stigmatized conditions.

The extent to which GINA regulations should allow incentives by employers offering wellness programs outside a group health plan.

“Employers should be concerned that the agency has raised the question of how information is being stored and its underlying assumption that employers are storing wellness program information electronically,” Gillespie said. “It could be an indication that the agency intends to take a broader look at the confidentiality of employer records both under GINA and under the ADA, and may attempt to create HIPAA- [Health Insurance Portability and Accountability Act] like standards on these types of records. The EEOC’s involvement in this area could create inconsistencies and conflicts with HHS’s [the U.S. Department of Health and Human Services’] positions regarding these records, to the extent that they are already protected by HIPAA either directly or under a business associate agreement.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.